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The Lawless Administration Does the Right Thing the Wrong Way

Home schoolers around the world are rejoicing in the unexpected news, after some hair-raising twists and turns to the case, that the Romeike family will not be deported. Here, in brief, is what has happened:

As followers of the case know, the home schooling family from Germany had come to America and had applied for asylum. (You know, wanting to be here legally and do things in a legal and official way.) At first, an asylum judge ruled that they qualified for asylum because they were being persecuted in Germany for being home schoolers. The Obama administration spent money appealing the case, arguing that they did not qualify for asylum. I wrote about the case before here, pointing out (what is sometimes overlooked) that the asylum laws concerning "persecution for group membership" apparently say that if you "should" not have to change a particular trait or behavior, this counts as an "immutable" trait or behavior, which opens the door to asylum for people such as the Romeikes. A higher asylum court sided with the administration and overturned the lower court's ruling. The case was appealed to the Supreme Court, and just a few days ago, SCOTUS refused to hear the case, thus leaving in place the ruling against the Romeikes.

Things looked grim, but within a short time after the ruling, the Romeikes' lawyer received a phone call from the DHS stating that the family had been given "indefinite deferred status" and therefore would not be deported.

So why am I only partly happy?

Well, I'm happy for the Romeikes, that they won't be sent back to Germany to have their children taken away as has happened to the Dudek family. I'm even happy that they will not have to try to find some other country to take them in, now that they have succeeded in starting a life here in America.

But to my mind, there is something lawless and insulting about the way that the administration has handled this case. Here's the pattern I see: The Obama administration was determined that persecution for home schooling not be regarded as grounds for asylum. To establish that precedent and send that message, they were willing to spend money, time, and effort.

Having frustrated the Romeike family's attempt to be in the United States in an unambiguously legal way, the Obama administration then behaves like the powerful emperors of old, giving the merciful "thumbs up" sign to the otherwise condemned prisoner. In this case, the thumbs up sign is legally questionable. "Indefinite deferred status" is a creation of the executive branch that appears (from the research I've been able to do so far) to lie outside of the purview of Congress and to have no basis in law. (I will be happy to be corrected in comments by readers who know something better about "deferred status" for immigration.) It is essentially telling illegal immigrants that they won't be deported "just because." This is an insult to the Romeikes, who have attempted scrupulously to follow the rules from their first moment of setting foot on U.S. soil. It also places both them and their children at the mercy of later administrations or indeed of a later decision by this administration to be more hawkish in the enforcement of immigration law. That, in turn, must make it difficult for either them or their eight (!) children to make plans for their future lives. Will they have the opportunity to become U.S. citizens? Where will they be living? What jobs will they be able to hold legally? Will they be targeted if, for example, they later engage in political speech or join a political group that the government disapproves of? Will their children be under special government scrutiny all their lives? It puts them, through no fault of their own, in a legal grey area currently occupied by immigration scofflaws. It seems to me very deliberately to send the following message: You respectable home schoolers who came here openly to avoid persecution are no different from any other illegal immigrants.

Let's get one thing straight: That is this administration's preferred modus operandi. The Obama administration prefers to govern lawlessly. Rather than overturning Obamacare because it's turned out to be a disaster, and rather than enforce it and take the political consequences, Obama prefers lawlessly to delay its implementation for blatantly partisan reasons. This administration does not believe in a government of laws rather than men. The case-by-case basis, making exceptions "just because," and keeping people on tenterhooks as to what is actually going to happen to them and what the law actually is, is all the breath of life to this administration. Indeed, this administration is a walking, breathing illustration of just why the phrase "a government of laws and not of men" was coined and what is so important about it. A "legal" situation more ripe for corruption and abuse is difficult to imagine.

I'm happy for the Romeikes--for now. Where they will be in ten years remains to be seen. I would like to think that a Republican administration down the line would find a way to regularize their position, which is what they wanted all along, but I'm not holding my breath.

I'm not happy for America, which is sliding further and further into a condition in which "law" is just a word denoting something distinctly postmodern--a prediction about what the executive will do.

Comments (13)

Lydia, you wrote essentially the exact post I had intended to write on this matter. Thanks...I guess.

Seriously, though, this is precisely the lesson to take away from this episode: The current administration's entire approach to governing is monarchical and arbitrary. They push for explicitly leftist policy and law, but whenever and wherever the actual political consequences or "heat" become an inconvenience, they magnanimously issue waivers, declaring the law simply to be not in force for particular persons as and when the executive deems necessary for its own (flagrantly self-serving) ends.

The entire Obama presidency has been a demonstration of the triumph of celebrity over substance, as reflected in the fact that the American people have twice elected a man whose actual positions are on the whole very unpopular but whose person, for reasons that remain obscure to me, is generally regarded as hip and likable. (Remaking an awkward, trying-so-hard-it-hurts, pseudo-academic leftist dweeb into the Voice of the Pepsi Generation has to be the grandest marketing trick ever accomplished by man.) In order to protect that likability, the President and his underlings will suspend in opportunistic fashion whatever actual instance of the law they have established that happens to come under negative scrutiny. The scope and scale of this practice is something entirely unheard of in my lifetime, constituting an entire approach to governing--an approach that has become so thoroughgoing and obvious that you are beginning to see average liberals defend it on philosophical, and not just prudential, grounds.

This is all a consequence of the practical implications of Progressivism, and of Leftism more generally, which positively invite the rule of men rather than the rule of law, the latter of which has been attacked for decades by the academic left as some kind of a clever Anglophonic scam hoisted on the weak by the powerful. Better that the powerful well and truly rule by arbitrary decree than that we maintain the illusion, so they say, of any higher political principle which might restrain us.

The question that conservative commentators ask themselves, "Why aren't more liberals thinking two steps ahead, when it comes time for a Republican to exercise the reigns of power?" is naive to the point of blindness. The answer is obvious. When that time comes, they will simply rediscover their love of the rule of law, and go into a volcanic meltdown over whatever transgression they think they can pin on their opponent, with the media putting every Republican violation of the separation of powers front and center for months, if need be, because that's what the dictates of the moment require. Having embraced obvious lying and the abandonment of principle as their right, by virtue of their being liberals, and by virtue of the unremitting evil of their political opponents, I think most liberal opinion makers just don't see a problem with the kind of unprincipled double-dealing that has become their stock in trade. They aren't even hiding it from themselves anymore.

When Clarence Page dismissed Obama's tireless campaign of deception over the (plainly understood, and widely predicted) consequences of Obamacare as "Just, you know, one of those political lies," he spoke for the great mass of Progressive humanity which has become increasingly tired of pretending that there is some real, consistent principle underlying their approach to politics and to the rule of law. From such self-serving absurdities as the "Living Constitution" to laughable double-speak such as "pooled sovereignty," the rationalizations designed to put some benevolent veneer on liberalism's disregard for ordinary standards of legitimacy are being discarded in favor of the standard that Thucydides identified in the Melian dialogue as the only possible standard in international relations, "What are you going to do about it, chump?"

If an actual public figure is cornered on this subject, he can simply do as Nancy Pelosi did when confronted with sustained criticism for her unalloyed hypocrisies concerning the filibuster, and just say, "I was wrong then, and I'm right now, end of story." All will be forgiven.

In the meanwhile, home-schooling families who aren't as much in the news as the Romeikes, and who are less likely to create a hugely embarrassing scene by forcing the Administration to actually enforce the precedent they fought so hard to establish, will quietly endure the persecution of foreign governments. The reprieve granted to them by the Administration only serves to make that persecution go more smoothly by discouraging others from seeking asylum here, while protecting the Germans and Obama himself from the glare of the cameras. As the libertarian blogger Glenn Reynolds is wont to say, consequences, like laws, are for the little people.

What I find myself wondering is how we individual Americans can approach this lawlessness. It is so blatant and so ominous, but when I talk to people about it IRL, if they don't already agree with me, they basically just shrug their shoulders.

I see dangers not far down the road and it seems like the people here at W4 do as well, but what do I do with that? I mean, the people who don't shrug agree with me, but it is a tepid, despairing sort of agreement. What to do with that?

I mean, I talk to my wife and we are homeschooling our kids and we attend a church of people who don't shrug and aren't desperate, but is that it?

I asked a rather similar question to yours and I'll save Lydia the time of reposting it, but this is what she wrote in the recent thread about Oligarchs:

"I say that things look dark, but God can always turn things around. As to what I do next, next I get up in the morning and do the job committed to my care. I think about the home school curriculum of my children still being home schooled. I advise my college-age child about life decisions. I answer the person who wrote to me today asking about Scripture and petitionary prayer--perhaps I do that in a personal e-mail or in a blog post. I plan the paper I've agreed to write for an anthology and a couple of other scholarly papers. I clean my house and cook and shop for food for my family. There are many worse ways to spend one's life. To us it isn't given to know all ends, and thinking too much about them will only sap our will to strive. We do what is right in our time. In G. K. Chesterton's "Ballad of the White Horse," the Virgin Mary tells King Alfred that he isn't to know whether he will be successful in driving back the Danes and that an expectation of success isn't what is to motivate his fight. It is in that context that the words come that are our new slogan on this blog:

Lately, my father who is a retired federal agent has started saying that the only cure he sees now to Obama and his successors is to break the balance of power between the branches by turning the Attorney General into a constitutional office not subject to the President and placing prosecutorial discretion in the AG's hands. That's how it works in many states and what is sorely needed at the federal level these days.

TUAD, I absolutely refuse to give up the word "gaily." It's a great word, and the line doesn't scan right without it. (It's from a poem, after all.)

Mike T., isn't the AG appointed by the administration, though? So I'm not sure how much difference it would make to make the office a separate constitutional office. Unless the AG were separately elected and could even be of a different political party.

Sage, I have little or nothing to add to your sobering but excellent comment. As you imply, we really cannot now encourage home schoolers persecuted in other countries to come to the U.S., and that was part of the point of this entire exercise by the Obama admin. I would say, unless the father of some home schooling family has some way of getting a "needed worker" visa or something because he has some special technical skill. As for the media and others suddenly rediscovering their love of the rule of law, that's absolutely true. Remember all the wailing over Bush's "signing statements"? Perfect example.

Unless the AG were separately elected and could even be of a different political party.

That's why I said we should make it a separate constitutional office outside of the executive branch in a formal sense. Ideally, it would be elected the same way as the Presidency and also have constitutional control over federal attorneys and internal investigators (mainly OIG). The President would maintain the head of federal law enforcement and the military, but lose jurisdiction over civil and criminal decisions in court to the Attorney General--including when to prosecute federal officials.

Mike, I like it. More separation of powers is a good thing. But in the long run, until the states can re-assert state powers and rights, it won't help a whole lot (I think), because we will still have all the federal authorities helping themselves to powers that don't belong to them.

Truth, I cannot remember the last time I used any cognate of "gay" innocently. A good word, destroyed.

I think putting the AG into a separate constitutional status would do wonders to reign in the other branches of government and make room for the states. One of the advantages there would be that the American people like split government so it's very likely that Obama would have been complemented by a Republican Attorney General. Can you imagine the unholy #$%^ storm a Republican AG would get into by not opening an investigation into Fast and Furious and Benghazi or a Democrat under Bush not doing the same over his misdeeds?

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